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Income Tax Appellate Tribunal, AGRA (SMC
Before: SHRI A. D. JAIN
IN THE INCOME TAX APPELLATE TRIBUNAL AGRA (SMC) BENCH: AGRA
BEFORE SHRI A. D. JAIN, JUDICIAL MEMBER
I.T.A Nos.131 & 265/Agra/2018 (ASSESSMENT YEARs-2007-08 & 2008-09)
Pt. Deen Dayal Upadhyaya Jagriti Vs..ITO,-(Exemption), Samiti, 43, New Colony, Agra. Chauguriji, Etawah (U.P.) PAN No.AABAP1386Q (Assessee) (Revenue)
Assessee by Shri M. M. Agarwal, AR. Revenue by Shri Waseem Arshad, Sr.DR.
Date of Hearing 04.06.2018 Date of Pronouncement 02.07.2018
ORDER These are assessee’s appeals for assessment years 2007-08 & 2008-09 against the orders dated 30.11.2017 for A.Y. 2007-08 and 29.12.2017 for A.Y. 2008-09, respectively, passed by the CIT(A).
For both the years, after rejection of the appellant’s application for 2. registration u/s 12AA of the IT Act, assessment orders for A.Y. 2007-08 and 2008- 09 were passed by the AO u/s 143(3) read with section 148 of the Act on
28.03.2014. These assessment orders were set aside by the ld. CIT(E), in view of orders dated 29.02.2016, passed u/s 263 of the Act. There-upon, the AO passed the
I.T.A Nos.131 & 265/Agra/2018 2
assessment orders presently under consideration under sections 263/143(3) of the Act, on 09.12.2016, for both the years. The impugned orders were passed by the ld. CIT(A) in the assessee’s appeals filed against the said assessment orders dated 09.12.2016.
The ld. Counsel for the assessee has contended that the appeals of the appellant against the orders dated 29.02.2016 passed by the ld. CIT(E), Lucknow under section 263 of the Act have been allowed by the Tribunal as per order dated 17.04.2018 in ITA Nos. 103 & 104/Agra/2016 and the orders dated 29.02.2016 passed by the ld. CIT(E) have been cancelled; and that in view of the order dated 17.04.2018 passed by the ITAT, Agra in ITA No.103 & 104/Agra/2016, the very basis of assumption of jurisdiction for passing the assessment orders dated 09.12.2016 has been effaced.
The ld. DR, on the other hand, has placed strong reliance on the orders under appeal.
Heard. As rightly contended on behalf of the assessee, the Division Bench of this Tribunal, vide order dated 17.04.2018, for A.Ys. 2007-08 and 2008-09, passed in ITA Nos.103 and 104/Agra/2016, has cancelled the orders dated 29.02.2016, passed by the ld. CIT(E), u/s 263 of the Act, for both the years under consideration. The orders under appeal presently before this Bench are a result of those very
I.T.A Nos.131 & 265/Agra/2018 3
orders of the ld. CIT(E), passed u/s 263 of the Act. The Division Bench, while cancelling the orders passed u/s 263 of the Act, has held as follows:
“6. Having heard the parties, we find the grievance of the assessee to be correct. The notices u/s 263 for both the years were issued proposing to cancel the assessment orders for want of inquiry regarding the two sets of balance sheets and accounts on the basis of which, exemption u/s 10(23C)(iiiad) of the IT Act had been claimed by the assessee, though the assessee was disqualified from claiming such exemption. Both the orders under appeal have also been passed on this very basis, cancelling the assessment as erroneous and prejudicial to the interests of the Revenue and directing them to be framed afresh. 7. However, in the assessment order passed for both the years, no exemption u/s 10(23C)(iiiad) of the IT Act, has been allowed to the assessee. Therefore, both the assessment orders are not erroneous, much less has any prejudice been caused thereby to the interests of the Revenue. That being so, neither of the necessary requirements of the provisions of section 263 of the Act has been fulfilled and, therefore, as rightly contended, the orders under appeal are unsustainable in law. 8. In view of the above, both the orders under appeal are cancelled and both the assessment orders are revived. In the result, both the appeals are allowed.” 9.
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Thus, the very basis for passing of the assessment orders dated 09.02.2016
and the consequent impugned orders dated 30.11.2017 and 29.12.2017, for both
these years, respectively, has been cancelled by the Division Bench of the
Tribunal. As such, the impugned orders cannot survive and they are cancelled.
Ordered accordingly.
In the result, both the appeals are allowed.
Order pronounced in the open court on 02/07/2018.
Sd/- (A.D. JAIN) JUDICIAL MEMBER *AKV* Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(Appeals) 5. DR: ITAT ASSISTANT REGISTRAR